Citation NR: 9705181
Decision Date: 02/18/97 Archive Date: 03/04/97
DOCKET NO. 94-14 454 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to an increased evaluation for service-connected
degenerative disc disease, C5-6 with post-operative
radiculopathy, currently evaluated as 60 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. Johnson, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1981 to March
1989.
This matter initially came to the Board of Veterans’ Appeals
(Board) from an October 1991 decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Roanoke,
Virginia, which denied an increased evaluation for the
veteran’s service-connected degenerative disc disease C5-6
with postoperative radiculopathy.
In June 1996, we granted the veteran’s appeal of a July 1992
decision denying an extension of a grant of temporary total
convalescence for the veteran’s May 1991 anterior cervical
fusion. Therefore, that issue is no longer before us.
However, our remand of the increased evaluation issue on
appeal here, is the subject of this remand.
In July 1992, the RO denied the veteran’s claim of an
increased evaluation for service-connected irritable bowel
syndrome and hiatal hernia, and a notice of disagreement was
filed in November 1992. An appeal is not of record,
therefore the issue is not before us at this time. In
February 1995, the 10 percent evaluation was confirmed and
continued.
In March 1993, the veteran was denied entitlement to total
rating on the basis of individual unemployability, and notice
of disagreement was filed in January 1994. In April 1994,
the veteran was granted a total rating on the basis of
individual unemployability, therefore this issue is not
before us.
In May 1994, the veteran was denied eligibility for financial
assistance in the purchase of one automobile or other
conveyance, or necessary adaptive equipment. In December
1994, the veteran was denied eligibility for specially
adapted housing and/or special home adaptation grant. In
August 1995, the veteran’s claim for special monthly
compensation was denied on the basis that new and material
evidence had not been submitted to warrant reopening the
claim. Notices of disagreement are not in the file,
therefore these issues are not before us at this time.
In a December 1996 Informal Hearing Presentation, the
veteran’s representative indicated that an April 1993 letter
from a non-VA facility constituted an informal claim of
service connection for both chronic pain syndrome and
depression, secondary to service-connected low back and
cervical spine disabilities. This matter is referred to the
RO for the appropriate action.
REMAND
As noted, this case was remanded in June 1996. In the
remand, it was noted that assignment of an increased
evaluation would require the granting of extraschedular
benefits under 38 C.F.R. § 3.321(b)(1) (1996). In an August
1996 decision, the RO denied an increased evaluation on an
extraschedular basis.
The VA has a duty to assist a claimant in the development of
facts pertinent to his or her claim. 38 U.S.C.A. § 5107(a)
(West 1991); 38 C.F.R. § 3.103(a) (1996). From a careful
review of the evidence in this case, the Board has determined
that there is additional development that must be completed
by the RO in order to fulfill this statutory duty prior to
appellate review of the veteran’s claims.
The United States Court of Veterans Appeals (Court) has held
that the duty to assist the veteran in obtaining and
developing available facts and evidence to support a claim
includes the procurement of medical records to which the
veteran has made reference to. Littke v. Derwinski 1
Vet.App. 90 (1990). The Court has also stated that the Board
must make a determination as to the accuracy of the record.
Further development is needed with respect to available
medical records. The claims folder contains a VA patient
profile, dated June 1996. This profile is a list of
treatment dates covering a period between October 1995 to
February 1996. However, the actual treatment records are not
associated with the claims folder. These records should be
secured and associated with the claims folder.
The Court has expounded on the necessary evidence required
for a full evaluation of orthopedic disabilities. In the
case of DeLuca v. Brown, 8 Vet.App. 202 (1995), the Court
held that ratings based on limitation of motion do not
subsume 38 C.F.R. § 4.40 (1996) or 38 C.F.R. § 4.45 (1996).
It was also held that the provisions of 38 C.F.R. § 4.14
(1996) (avoidance of pyramiding) do not forbid consideration
of a higher rating based on greater limitation of motion due
to pain on use, including during flare-ups. The veteran’s
disability is not currently rated on the basis of limitation
of motion. However, in order to consider all possible bases
for a rating higher than 60 percent, it is necessary to
consider provisions pertaining to extraschedular ratings as
well as alternative Diagnostic Codes, such as those
applicable to ratings for ankylosis of the spine. In
assessing whether such alternative codes might be applicable,
it is necessary to follow the guidance provided by the Court
in DeLuca.
In view of the foregoing, and in order to fully and fairly
evaluate the veteran’s claim, the case is REMANDED to the RO
for the following development:
1. The RO should obtain the VA treatment
records for treatment dates listed on the
June 1996 patient profile. Once secured,
they should be associated with the claims
folder.
2. The veteran should be afforded a VA
orthopedic examination to determine the
nature and severity of her service-
connected cervical spine disability.
Such tests as the examining physician
deems necessary should be performed.
The examination should include complete
observations of the range of motion of
the affected area. All findings should
be reported. The orthopedic examiner
should also be asked to determine
whether the cervical spine exhibits
weakened movement, excess fatigability,
or incoordination attributable to the
service-connected disability; and if
feasible, these determinations should be
expressed in terms of the degree of
additional range of motion loss due to
any weakened movement, excess
fatigability, or incoordination. The
orthopedic examiner should be asked to
express an opinion on whether pain could
significantly limit functional ability
during flare-ups or repeated use over a
period of time. This determination
should also, if feasible, be portrayed
in terms of the degree of additional
range of motion loss due to pain on use
or during flare-ups. The examiner
should state whether, in light of these
findings, the disability is comparable
to complete ankylosis of the spine. The
examiner should also record any
objective displays of pain. The
examiners should identify manifestations
of the veteran’s service-connected
disability and distinguish those
manifestations from any coexisting
nonservice-connected disabilities. The
claims folder should be made available
to the examiner for review before the
examination.
3. The RO should readjudicate the
veteran’s claim of entitlement to an
increased evaluation for degenerative
disc disease, C5-6 with post-operative
radiculopathy. The rating should
reflect consideration of the provisions
of 38 C.F.R. § 3.321(b)(1) (1996). The
decision should also reflect
consideration of DeLuca v. Brown, 8
Vet.App. 202 (1995), and the provisions
of 4.40, 4.45 (1996).
4. If the determination remains adverse
to the veteran, she should be provided a
supplemental statement of the case which
includes a summary of additional
evidence submitted, any additional
applicable laws and regulations, and the
reasons for the decision. The veteran
and her representative should be
afforded the applicable time to respond.
Thereafter, subject to current appellate procedures, the
case should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
action until he is further informed. The purpose of this
REMAND is to obtain additional information and to afford the
veteran due process of law. The Board intimates no opinion,
either factual or legal, as to the ultimate conclusion
warranted in this case.
G. H. SHUFELT
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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